TITLE 42 - THE PUBLIC HEALTH
AND WELFARE
CHAPTER 126 - EQUAL OPPORTUNITY FOR INDIVIDUALS WITH
DISABILITIES
SUBCHAPTER I - EMPLOYMENT
42 U.S.C. Section 12112.
Discrimination
(a) General rule
No covered entity shall discriminate against a
qualified
individual with a disability because of the
disability of such
individual in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation,
job
training, and other terms, conditions, and privileges of
employment.
(b) Construction
As used in subsection (a) of this section, the
term
"discriminate" includes -
(1) limiting, segregating, or classifying a job
applicant or
employee in a way that adversely affects the
opportunities or
status of such applicant or employee because of the disability
of
such applicant or employee;
(2) participating in a contractual or other
arrangement or
relationship that has the effect of subjecting a
covered entity's
qualified applicant or employee with a disability
to the
discrimination prohibited by this subchapter (such relationship
includes a relationship with an employment or
referral agency,
labor union, an organization providing fringe benefits to an
employee of the covered entity, or an organization providing
training and apprenticeship programs);
(3) utilizing standards, criteria, or methods of administration
-
(A) that have the effect of discrimination on the
basis of
disability; or
(B) that perpetuate the discrimination of others who are
subject to common administrative control;
(4) excluding or otherwise
denying equal jobs or benefits to a
qualified individual because of the known disability of an
individual with whom the qualified individual is known to have
a
relationship or association;
(5)(A) not making reasonable accommodations to the
known
physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant
or employee,
unless such covered entity can demonstrate that the
accommodation
would impose an undue hardship on the operation of the business
of such covered entity; or
(B) denying employment opportunities to a job
applicant or
employee who is an otherwise qualified individual with a
disability, if such denial is based on the need of such covered
entity to make reasonable accommodation to the physical or
mental
impairments of the employee or applicant;
(6) using qualification standards, employment tests or other
selection criteria that screen out or tend to screen out an
individual with a disability or a
class of individuals with
disabilities unless the standard, test or other selection
criteria, as used by the covered entity, is shown to be
job-related for the position in question and is consistent with
business necessity; and
(7) failing to select and administer tests concerning
employment in the most effective manner to ensure that, when
such
test is administered to a job applicant or
employee who has a
disability that impairs sensory, manual, or speaking skills,
such
test results accurately reflect the skills, aptitude, or
whatever
other factor of such applicant or employee that such test
purports to measure, rather than reflecting the impaired
sensory,
manual, or speaking skills of such employee or applicant (except
where such skills are the factors that the test purports to
measure).
(c) Covered entities in foreign countries
(1) In general
It shall not be unlawful under this section for a
covered
entity to take any action that constitutes discrimination under
this section with respect to an employee in a
workplace in a
foreign country if compliance with this section would cause such
covered entity to violate the law of the foreign country in
which
such workplace is located.
(2) Control of corporation
(A) Presumption
If an employer controls a corporation whose place
of
incorporation is a foreign country, any practice
that
constitutes discrimination under this section and is engaged in
by such corporation shall be presumed to be engaged in by such
employer.
(B) Exception
This section shall not apply with respect to the foreign
operations of an employer that is a foreign person
not
controlled by an American employer.
(C) Determination
For purposes of this paragraph, the determination of whether
an employer controls a corporation shall be based
on -
(i) the interrelation of operations;
(ii) the common management;
(iii) the centralized control of labor relations; and
(iv) the common ownership or financial control, of the employer and the
corporation.
(d) Medical examinations and inquiries
(1) In general
The prohibition against discrimination as referred to in
subsection (a) of this section shall include
medical examinations
and inquiries.
(2) Preemployment
(A) Prohibited examination or inquiry
Except as provided in paragraph (3), a covered
entity shall
not conduct a medical examination or make
inquiries of a job
applicant as to whether such applicant is an individual with
a
disability or as to the nature or severity of such disability.
(B) Acceptable inquiry
A covered entity may make preemployment inquiries
into the
ability of an applicant to perform job-related functions.
(3) Employment entrance examination
A covered entity may require a
medical examination after an
offer of employment has been made to a job
applicant and prior to
the commencement of the employment duties of such applicant, and
may condition an offer of employment on the results of such
examination, if -
(A) all entering employees are subjected to such
an
examination regardless of disability;
(B) information obtained regarding the medical condition or
history of the applicant is collected and maintained on
separate forms and in separate medical files and is treated as
a confidential medical record, except that -
(i) supervisors and managers may be informed regarding
necessary restrictions on the work or duties of the employee
and necessary accommodations;
(ii) first aid and safety personnel may be informed, when
appropriate, if the disability might require emergency
treatment; and
(iii) government officials investigating compliance with
this chapter shall be provided relevant information on
request; and
(C) the results of such
examination are used only in
accordance with this subchapter.
(4) Examination and inquiry
(A) Prohibited examinations and inquiries
A covered entity shall not require a
medical examination and
shall not make inquiries of an employee as to whether such
employee is an individual with a disability or as
to the nature
or severity of the disability, unless such examination or
inquiry is shown to be job-related and consistent with business
necessity.
(B) Acceptable examinations and inquiries
A covered entity may conduct voluntary medical
examinations,
including voluntary medical histories, which are part of an
employee health program available to employees at that work
site. A covered entity may make inquiries into the
ability of
an employee to perform job-related functions.
(C) Requirement
Information obtained under subparagraph (B) regarding the
medical condition or history of any employee are subject to the
requirements of subparagraphs (B) and (C) of paragraph (3).
-SOURCE-
(Pub. L. 101-336, title I, Sec. 102, July 26, 1990, 104 Stat.
331;
Pub. L. 102-166, title I, Sec. 109(b)(2), Nov. 21, 1991, 105
Stat.
1077.)
